Martin Laidlaw, the Scottish builder starring with Team Orange on The Block NZ, has recently been saved from being deported. He briefly became an overstayer when Immigration refused his application for another Work Visa. Fortunately, perhaps owing to public pressure to reinstate him, he got his visa back to carry on working for the construction company which praised his high level of competence in the trade.

From the outside this all may look bizarre – and it is. His employer supported his application for an Essential Skills Work Visa on the basis that he was highly qualified and indispensable to their work, and could train newer builders. What they did not do, by the sound of it, is to re-advertise his job and contact WINZ to find out if there were New Zealanders who could replace him.

Essential Skills Instructions require employers to show that they could not find New Zealanders to fill the role held by someone whose Work Visa is ending. Immigration’s assessment whether the foreign worker should get a visa to do the job, over employing someone local, is called the “labour market test”. The rules specifically state that the person’s value to the employer is irrelevant to this test. Unfortunately, visa staff have to apply this rule. We explained this in an earlier post which still applies now.

However, as Marty’s company pointed out in one of the news stories above, this situation creates a tension between immigration law and employment law. A migrant has been given a job on a permanent (read: indefinite) employment agreement. While they are still working, the boss then has to advertise their job to hire someone else to replace them. In the ordinary run of things, New Zealand workers facing this scenario would have a fair case for a personal grievance with the Employment Relations Service.

The difference here, though, is that if you are on a Work Visa you only have the lawful right to work up to the day the visa expires. If it isn’t renewed it is illegal for the employer to keep you on. In fact recently the Immigration Act was changed to stiffen the penalties for employers who hire people who have no visa to work in that job.

What is problematical, though, is the way Immigration often ignores the case made by employers that they cannot find New Zealanders who are capable or willing to do the job. Again and again we hear business owners complain that Kiwis in the job market are underskilled, unreliable, and have a poor work ethic. However, Immigration is clearly being told to protect jobs for New Zealanders, sometimes irrespective of the realities which they are being told by frustrated employers. It is as if they are lying when they protest that they really can’t replace Kristina or Jaspreet, because they’ve learned from hard experience that local people just can’t be found; or if they are, then they don’t make the grade. And don’t even get them started about people referred by WINZ . . .

As a reality check, why not consider that it’s much easier for most employers to hire New Zealanders than to get someone on a Work Visa? For one thing, there is the paperwork, delay and uncertainty involved in supporting the visa application. There may be language barriers, or even the more subtle lack of understanding of Kiwi work culture that can create obstacles to someone settling in with their colleagues. In my view, this almost creates a presumption that an employer providing a job for a Work Visa applicant has good reasons why they can’t fill the post from local talent.

You could say that one advantage of hiring migrants is that you can pay them less. In some cases it’s true that people are accepting lower wages for the sake of making a living here. But that is a separate issue. If the boss is underpaying, then the application can be declined for this reason – that New Zealanders would not be willing to work under those conditions. Although the matter of salary is not totally separate from the labour market issue, it is central to saying that the employer is not genuine about being unable to find people to work for them.

Marty’s case highlights a lack of practical sense in the policy settings. Maybe it’s time to say that it should be relevant if an employee is a key person in the business, is highly qualified, and can help upskill the local labour pool. Protection of jobs for New Zealanders is important, sure, but so is protection of the stability and viability of New Zealand employers. Make no mistake, hiring and re-hiring is an expensive and inefficient business while the new person learns the ropes – or has to be replaced if they turn out to be no good.

Immigration New Zealand is part of the Ministry of Business, Immigration and Employment (MBIE). Time to refocus on the ‘B’.